THE RISE OF THE CIVIL LAW SYSTEM
privileges formed the only expedient by
ROMAN ELEMENTS OF THE CIVILIAN SYSTEM
In order to understand our Civil Code, we have to go back to the Spanish
law. However, doing such would not be enough for we also have to examine
the roots of Spanish law— the Roman law. The connection of these two laws
may be observed through the rigid conservatism of Corpus Juris Civilis
which merely an accumulation of the old Roman law. Apart from which, we
also have to look into the great influence of Greek Stoic philosophy in the
creation of the early Roman law.
Greek Stoic Philosophy  Roman law  Spanish law  Civil Code
EALRY ROMAN LAW INTERTWINED WITH RELIGION
The ancient Roman state was initially composed of hardy peasant who
fashioned their laws according to their lifestyle.
The primitive government was ruled by the king (administers war and religion;
proposes laws which were debated by the senate), council of nobles, and a
general assembly of people.
People ascribed the laws on marriage, education of children and authority of
parents to Romulus.
The Civil law balanced the rights and fortunes of the seven classes of
citizens and guarded the observance of contracts and punishment of crimes.
 However, the last Tarquin king tried to subvert this into a lawless
despotism and heralded the rule of patricians
 The rules of the kings did not, fortunately, became obsolete as the
priests and nobles tried to preserve it.
o Yet, the Roman citizens still complained that they were ruled
by arbitrary sentence of the magistrates
 “as royal power decays, it gives way to the dominion
of aristocracies” – Maine
 Reason: aristocracy invested with judicial
which accurate preservation of the customs
of the race or tribe could at all be
approximated to
Ancient Roman law was intertwined with religion. Law, at this point, was lex
(command) and jus (justice)
 a relation not just between man and man, but man and gods
 crimes were considered to destroy the peace (pax deorum) and thus,
were punished
 there was a fear of eternal damnation for those who think too much
Priests, being the autocrats at that time, shaped the law to suit their religious
ends. They decide on questions relating to marriage, divorce, celibacy, incest,
wills, transfers, rights of children and parent, etc.
 law was eclipsed with oaths and rituals
While religion, morals, and customs are interwoven, it fails to develop as long
as law cannot become distinguishable from religion.
Religion for the Romans was not one of a relationship with an all-knowing god
but a public observance to promote social cohesion and loyalty to the state.
 This is probably why Roman law was able to extricate itself from
religion as “progress of human thought no longer permits the solution
of particular disputes to be explained by supposing an extra-human
interposition” – Maine
LAWS AND SYMBOLS
Signs and symbols were used to symbolize certain transactions. For example,
in contracts, transactions in law resembled a pantomime and every gesture
was a requirement for its validity. This was done in order to emphasize the
importance of the contract and to commit to memory the promise amongst
witnesses.
This was rooted from the pontiffs and patricians. This practice however died
down due to the treachery of the plebeians.
THE FAMILY AS THE BASIC UNIT
Rights were only attainable through the family.
The authority of the highest living ascendant was called patria potestas.
 Unusual power of the father over the members of the family
 Although the son enjoyed the rights of a person under the Roman law,
in his father’s house, he was in the same category as that of a cattle
and slave.
 This bore down heavily to women who were considered to be
mentally inferior than men.
MARRIAGE AND DIVORCE
There were 3 modes of marriage in Roman Law
 Religious marriage or Conferreation
 Civil Marriage or Coemption
 Lower form or Usus
o The woman passed in law to the husband through partia
potestas
Given that a woman was considered as a chattel, she may be returned or
treated as any movable property.
Incestuous marriages are condemned and adoption was treated as an
imitation of the ties of blood.
TESTATE AND INTESTATE SUCCESSION
The family unit led to the invention of the will.
Wills descended from mancipium which is the primitive form of conveyance.
This should not be viewed as a distribution of the dead man’s goods but a
transfer of representation of the household.
 However, this ended with the allowance of the will as allowanced by
the 12 Tables where the testator pronounced his testament to 5
citizens, with a 6th witness attesting the concurrence, and 7th who
weighs the copper money supposed to be paid by an imaginary
purchaser.
o This was later on simplified by requiring the seals and
signatures of 7 witnesses.
o This martial nature gave birth to codicil (a supplement to a
will) and the invention of the fideo-commissa (trust designed
for Roman soldiers who may die in war)
This also led to the division of property – res mancipi (movable) and res nec
mancipi (immovable)
 Res mancipi were of great value and highly appreciated (e.g land,
slaves, and work animals)
 Nac mancipi was expanded through conquest and discovery of man
over material nature
EVOLUTION OF CONTRACTS
Mancipi concept led to the idea of conveyances, which later on resulted to
verbal, literal, real, and consensual contracts.
THE CONCEPT OF OBLIGATION
The part of Roman law which has had the most extensive influence on foreign
law is the law of obligation and contracts.
Obligation, according to Maine, is the bond or chain with which the law joins
together persons or group of persons in consequence of certain voluntary
acts.
 This implies rights as well as duties
Vinculum juris or legal chain is the metaphor used by the Romans which
bind the parties together, and which could only be broken by xolutio or
payment.
Division of obligations The Romans have recognized that a person’s control over a property is
 Natural relative and should be limited by law, custom, and other forms of restraints.
- A person with full intellectual maturity bound himself in an
engagement Sic utere tuo ut alienum non laedas  no one should make evil use of
 Civil his own property.

Other sources of obligations

 Quasi-contracts Although it is the individual who may acquire the object of property through
- Not contracts since convention or agreement is missing (e.g. his own efforts, it is still society which creates the circumstance that make
payment by mistake) property out of it
 Quasi-delicts  Illustrated through the limitation of landholding

ACQUISITION OF PROPERTY CRIME AND PUNISHMENT

Original right to property was justified by discovery, capture, or prior The penal law in ancient communities is not the law of crimes but the law of
occupancy or possession. wrongs (torts) – Maine
 All wrongs give rise to obligation to pay money
Modes of acquiring property
 Mancipium It was the early religious code that defined certain acts and omissions as
- Delivery of the thing in the presence of witnesses and a public crimes, being violations of divine command (e.g. adultery, sacrilege, and
official murder).
 In jure cession
- Solemn delivery before the praetor Penal laws may be classified into law punishing sins and punishing offenses
 Adjudicatio against one’s neighbors (torts).
- Partition made by a judge
 Lex Primitive history of criminal law
- Determined by the 12 Tables  Started with the understanding that the concept of crime is different
 Usucapio from that of torts and sin. It includes the idea of injury to the whole
- Prescription community, later to the state, to avenge the evil which it had suffered.
 The next movement was taken by the legislature when it appointed
Properties were divided into movables and immovables. regular commissioner to try particular classes of crimes.
 The last stage was when the commissioners were constituted into
Hoebel had 2 essential aspects of property permanent chambers to try crimes.
 Object
 Web of social relations For ordinary crimes, the penalties were graduated not only on the basis of
- Establishes a limiting and defining relationship between persons the value of the thing stolen but also the status of the offender.
and objects
Legislative assemblies were presided by the king to try criminal cases. This
was later on delegated to the commission or even to a single commissioner.
 One of the first permanent courts was quaestor perpetua (anti-graft
court to recover money misappropriated by the governor general)
PHILOSOPHY OF THE EARLY ROMAN LAW
Jurisprudence of Roman was polished and improved in the 7th century by its
alliance of Grecian philosophy.
 One of those theories was the natural law
- Nature of things to which man ought to conform his conduct
- That which nature has taught all living beings
- Stimulus to the progress of the Romans in the development of
their legal system
- Associated with nature, simplicity, symmetry, and intelligibility
were regarded as the characteristics of a good legal system
 However, aequitas (practical concession as the directive principle of
a progressive legal development which finds itself in opposition to the
struct civil law) and humanitas (contemplated not only moral and
intellectual education, but also kindness, goodness, sympathy, and
consideration for other) regulated the rigidity of individualism.
 From humanitas evolved another concept of marriage – free marriage
- Wife is not anymore subject to the husband’s manus (wife being
under the power of the husband and in the same, her daughter)
Roman juristic science reached its peak in the 2nd and 3rd centuries AD when
justice was separated from politics.
Roman law ended due to the entwined and warped religion and dogma.
 For example, the application of the Corpus Juris Civilis which was
the Code of Justinian that enacted orthodox Christianity into law

Some of the ideas in law were borrowed from Greek Stoic philosophers
 Taught laws of nature in an ethico-legal sense
 Laid down rules of conduct and statement of rights which pertained to
humanity and were superior to any positive or local law
 Where Roman law borrowed its concept of individual rights, theory on
penology, rules of administration, and fidelity of duty.

Bonus pater familias came from the Stoics’ reverence for one’s parents and
the obligation of feeding the children.

Roman law lacked the ethical element.

 Law was defined as what is decided by the people of Rome at the
request of the senatorial magistrates such as the consul.
 Law before it was married to ethics.

Romans only recognized two forms of association

 Societas
 Corporation

One common thread of Roman private law is the philosophy of individualism

(freedom from state interference)